By Georgina Baidoun, 16th July 2024
I was interested in this hearing (COP 13826049) before DJ Griffiths sitting at Exeter on 11th July 2024 because it was listed as concerning the appointment of a deputy for property and affairs.
Before the hearing began
I was surprised to find that the Transparency Order I was sent in advance of the hearing did not mention a Deputyship but said:
(3) The attended hearing is to be listed as follows:
a) Where KW should live;
b) Authorising a deprivation of liberty
The explanation became apparent during the hearing but I afterwards saw that the court administrator had responded to my query saying “the issue of where P will live is not before the court today, only the Deputyship issue that has arisen”.
In fact, the procedural issues were at least as interesting as the substance of the hearing and it was another good day for open justice.
When the hearing was about to begin, it was noted that one participant was having difficulty joining. The judge said that he had himself had a similar difficulty! It was agreed that, while waiting for this participant, the barrister for the Local Authority, Matthew Angus, would summarize for me what had happened previously. The judge did not ask me if I had received the transparency order and whether I agreed to abide by it but he did assume that I was there on behalf of the ‘transparency project’ (by which I took him to mean the transparency project called the Open Justice Court of Protection Project rather than the Transparency Project, which specialises in Family Courts), to which I assented.
The story so far was indeed mainly concerned with health and welfare issues. P was a man with learning disability who needs care under the ‘Care and Support Act’, which I think is now the Care Act 2014, clinging on to its old name for those who have long worked in this area, as Mr Angus has done. There were two of P’s family members involved in the case, his mother and his brother, although neither were joined as parties or in attendance. Three members of the local authority were in attendance but did not participate. Others in attendance were a barrister and a solicitor acting for P on behalf of the Official Solicitor in the health and welfare aspects of his case.
Previous hearings had been concerned with where P should live and constraints on contact but also, in January 2022, with an application by the local authority to be appointed Court of Protection deputy for P’s property and financial affairs. The issue referred to in relation to that hearing was the need to obtain a copy of P’s father’s will but I assume nothing was resolved because that was also the main issue at this hearing.
The hearing
The judge opened, with everyone now in attendance, by noting that there was now an agreed draft of the latest decisions about P’s residence, which I suppose was essential background even though the current hearing was about property and affairs.
Mr Angus then set out the local authority’s position. The deputyship application was concerned with moneys (and possibly a tenancy) inherited from the father that were being held for P by his mother and brother. The local authority already held the Department of Works and Pensions appointeeship for P (allowing them to collect his benefits) and it would be easier for them if they could have responsibility for other assets too.
When the original application was made in January 2022, P’s mother had objected. Since then, there had been issues relating to P’s capacity to manage his own financial affairs. It seemed that he had been judged not to have such capacity but there was a separate question as to whether he had capacity to litigate. It was now also not clear whether the mother had capacity to litigate or, indeed, whether she still objected. Her last objection had been recorded in March 2022. (I have no idea why nothing seemed to have happened in the intervening period.)
The judge responded to Mr Angus by pointing out that “the local authority’s convenience was neither here nor there” and that any decision would be based entirely on P’s best interests. P was not currently a party to the case and the two lawyers present at the hearing who were acting on behalf of the Official Solicitor had no formal role, since they were only instructed to act in health and welfare matters.
The judge moved on to next steps. He would be asking the Official Solicitor to act as P’s litigation friend in this matter too. He would also seek to join P’s brother as a party. Once joined, he would be required to provide any financial information he held concerning the father’s will, but he could then apply to be discharged, if he so wished. It was also necessary to discover whether the mother had capacity to litigate or whether she too needed a litigation friend. Also, whether she still objected to the application. The application to appoint a property and affairs deputy would be separated from the health and welfare case, a separate number allocated and a new Transparency Order prepared.
The judge noted that if, when all the necessary financial information had been collected, it was discovered that there was very little in the way of assets, it might not be necessary to appoint a deputy at all. The amount of money available would also inform the Official Solicitor about the costs of acting in this case.
The Transparency Order
I had asked for the Transparency Order when I asked to attend the hearing and was sent two (sealed) versions: one made by DJ Scott on 10th January 2024 and the second made by DJ Griffiths on the very day of the hearing I was observing (11th July 2024).
The earlier-dated Transparency Order prohibits identification of the local authority.
The subsequent Transparency Order says that the earlier one “erroneously includes the identity of the Local Authority within the protected subject matter” (see below) and amends it to correct that error.
The “amended” version strikes through the prohibition on naming the local authority (see 6(i) (c)).
This is excellent news.
There have been at least two other recent occasions on which Transparency Orders have prevented identification of Devon County Council and have been challenged by observers (see: “Getting it right first time around”). The Open Justice Court of Protection Project has identified a recent spate of these erroneous Transparency Orders and has done some work to alert both HMCTS and the judiciary to the problem. I think it is fair to assume that the amended Transparency Order is a direct result of the work that the Open Justice Court of Protection Project has done – and it’s very reassuring to know that the judge did it on this occasion without having been prompted to do so by an observer’s complaint.
This marks real progress for open justice!
Georgina Baidoun was the lay Court of Protection Deputy for her mother’s Property and Financial Affairs until her mother died in 2021. Because of the difficulties she experienced with several applications to the Court, and with the Office of the Public Guardian in connection with her annual report, she has retained an interest in these areas, including attending Court of Protection Users Group meetings. She is keen to share her experiences in the hope that she can help others who have to engage with these institutions with very little help or guidance. She tweets as @GeorgeMKeynes
Promoting Open Justice in the Court of Protection 